Citation Nr: 21032342 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-22 235 DATE: May 26, 2021 ORDER Service connection for a gastrointestinal (GI) hernia is denied. FINDINGS OF FACT 1. The Veteran had active duty from June 1974 to June 1976, October 1981 to May 1982, and May 1982 to June 2001; he has been 100 percent disabled based on unemployability since January 2016. 2. A GI hernia, other than the already service-connected inguinal hernia, claimed as hiatal hernia and umbilical hernia, was not shown in service, is not causally or etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. CONCLUSION OF LAW A GI hernia was not incurred in service and is not proximately due to, or aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 2020, the Board remanded the issue for additional development. The Regional office (RO) substantially complied with the remand instructions and the issue is again before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and other functional disorders. The disability must manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. An undiagnosed illness is one which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71, 382-84 (Oct. 17, 2016). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994) A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (MUCMI) (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.§1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbance; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). The disability must manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. An undiagnosed illness is one which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71, 382-84 (Oct. 17, 2016). Turning to the evidence, the first element of service connection a current disability is met, as February 2017 VA medical records show a CT scan revealing a moderate hiatal hernia, and August 2014 VA medical records detail surgical intervention to repair a reducible umbilical hernia. As such, the first element of service connection is met. As to an in-service incurrence, the Veteran had periodic abdominal and GI symptoms during service. He is already service connected for a left inguinal hernia. Nonetheless, the second element is met for purposes of this decision. As to medical nexus, multiple VA examiner have found etiological connections between the residuals of inguinal hernia and the surgery he had during service, but no such opinion has established as similar etiological connection for either the hiatal or umbilical hernias diagnosed during the appeal period. A January 2021 VA examiner found that the umbilical hernia was less likely than not due to service because it was not present, diagnosed, or repaired during service. As such, the third element is not met, and the medical evidence does not support service connection on a direct basis. As to secondary service connection, the first element a current disability is met as described above, as is the second element a service-connected disability as the Veteran is service connected for Hepatitis B with diverticulitis and gastroesophageal reflux disease (GERD). As to a medical nexus between the current GI hernias and a service-connected disability, June 2019 and December 2020 VA examiners found it was less likely than not that his current GI hernias were proximately due to or aggravated by service-connected disabilities. The June 2019 VA examiner stated that hiatal hernias were not known to be caused by GERD, although they could aggravate GERD, and that the Veteran's diverticulitis and Hepatitis B symptoms were quiescent when the hiatal hernia was diagnosed. The examiner used the same reasoning to conclude that his service-connected disabilities did not aggravate the hiatal hernia. Next, the December 2020 VA examiner similarly found no medical nexus between the Veteran's nonservice-connected GI hernias and any service-connected disability. The Board remanded in part for an opinion that also addressed his umbilical hernia. The Veteran refused the physical hernia examination at that time. As to the umbilical hernia, the examiner found it was less likely than proximately due to or aggravated by GERD, diverticulitis, or Hepatitis B, because there is no medical evidence that has shown a link to any of those conditions and inguinal or umbilical hernias. As there is no medical opinion that rebuts these, the third element is not met, and the medical evidence does not support service connection on a secondary basis. Next, although the Veteran had qualifying service in the Southwest Asia theater of operations, his GI hernias are diagnosed conditions, and are, by definition, not an undiagnosed illness or a MUCMI. As such, the medical evidence does not support service connection as a qualifying chronic disability. The Board has considered the Veteran's lay statements that that his hiatal and umbilical hernias were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.